The “vicious circle” of law enforcement reform, judicial shortcomings, undercut wings of anti-corruption policy – the views of politicians and experts

Judicial reform

Moderator Halyna Chyzhyk, expert at the Anti-Corruption Action Center, commented on the course of judicial reform in Ukraine. One of President Zelensky’s first legislative initiatives was the draft law “On the Reform of the Judiciary”, which entered into force in November 2019. He proposed effective steps to clean up the judiciary, but the High Council of Justice (HCJ) sabotaged his implementation and the Constitutional Court declared many provisions unconstitutional. In June 2020, he registered the presidential bill №3711, designed to reboot High Qualification Comission of Judges of Ukraine (HQCJ) for the second time. The draft law is being considered by the parliament. The moderator summed up that in 2 years the representatives of civil society and the citizens themselves have not seen any changes. According to a survey conducted by the Razumkov Center, the indicator of public confidence in the courts is one of the lowest – 2.2%.

Roman Kuibida, Deputy Head of the Board, Centre of Policy and Legal Reform, deputy chairman of the Center for Political and Legal Reforms, said that in terms of judicial reform, last year was a year of lost opportunities, even with a “-” sign.

Reasons:

1. There is still no HQCJ and not even a law that would allow it to be formed.
2. Politicians’ promise to restart HCJ has not been fulfilled.
3. The Constitutional Court contributed to the formation of a system of impunity in the judicial environment, repealing a number of articles of the Criminal Code (on liability for illicit enrichment, making deliberately unjust decisions, false declarations, etc.).

“During this year, the anti-corruption measures taken over the last 5 years have been dealt a blow. This is a big step backwards, – the speaker said. – What shall I do? In parallel, to address the issues of both the HQCJ and the HCJ, through the establishment of an independent commission to check the members of the HCJ to clean it from those who support corrupt practices in the judiciary. It is equally important to introduce competitive procedures, with the participation of an independent commission to the HQCJ and HCJ. ”

A step that strengthens the role of the HCJ in the formation of these bodies before its reform is a mistake. This is the opinion of the Venice Commission and sector experts.

Roman Kuibida called the adoption in the first reading of the Anti-Corruption Strategy, the government’s initiative on a jury trial, the idea of ​​vectors of economic development, as the economy does not develop without a fair trial, a positive preparatory step for the year.

Andriy Kostin, MP, Head of the Parliament Committee on Legal Policy, drew attention to several historical steps. The speaker focused on the bill №1008 (adopted as the law №193) and noted the political will of the President to change the approach to the formation of the HQCJ. He noted that despite considerable criticism of the law, the president adheres to the principled position that the selection of members of the HQCJ should take place with the involvement of international partners.

The speaker noted that in the composition of the bill №3711 there is no fixed quota for judges in the HQCJ. This is in line with established European practice, but is a principled position of the President.

“The situation with the adoption of any bills on the judiciary is extremely politicized in the Ukrainian parliament. This is historically well-established, and any proposed reformist idea evokes a whole range of opposing views. Certain factions oppose any international element in the judiciary, and there are proposals to invite more international experts to form judicial authorities. That is, there are two extreme positions. Our task is to find a compromise that does not go beyond the basic lines outlined by the President in Bill №3711, and still achieve its goal. ”

In assessing the project, the Venice Commission, taking into account the Ukrainian realities, proposed. That at this stage of development of the Ukrainian legal system it is desirable to have greater autonomy of HQCJ and further to carry out rapprochement between HQCJ and HCJ. Recommendations will be included in the draft after the first and second readings. Meanwhile, the parliament did not support this model, and the bill is being finalized.

Further priorities are to improve the work of the HQCJ, to ensure the unity and sustainability of judicial practice by the Supreme Court. He added that further discussion of the bill on judicial reform will take place with the participation of the public and international partners.

Valentyna Danishevska, Head of the Supreme Court, noted that the judicial system and the public have a common key goal – to ensure an independent, impartial, fair justice that people trust. The path to this goal is not purely a reboot. “We see success, but we are also watching. That if the conditions for independent justice are not created, then no reboots will lead to the proper result. That is, in parallel with the way we are reviewing the philosophy of recruitment to the judiciary, we need to talk more about whether there are conditions for a virtuous professional we want to see in the judiciary to stay that way for as long as he works, ”she explained. speaker.

Valentyna Danishevska added that the current conditions are not favorable. The judiciary is experiencing instability and interference in terms of financial security, no reform strategy, no expected changes. “When judges are in a state of stress, no matter how much we criticize them, we can hardly expect a balanced justice. Judges are worried about their fate, and that’s natural. In such conditions, they cannot be exemplary. ” The speaker pointed out that dozens of criminal cases had been filed against judges of the Supreme Anti-Corruption Court, who had worked for a year and for whom selection was considered exemplary.

The speaker noted that the level of trust in the judiciary is the same as in other authorities, and we need to work together on this. Valentyna Danishevska said that trust in the courts has been declining for decades, and if it has doubled in the last 3-4 years, it shows that there is progress in a constructive and appropriate direction, but it is necessary to determine what gives positive results.

In addition, the President of the Supreme Court noted that 4 million appeals are received by the courts every year. The percentage of negative decisions against them is negligible, but it affects trust and shapes the attitude to the whole system. This affects the dignity of thousands of virtuous judges. Therefore, Valentyna Danishevska called for fighting for them, because without allies, results cannot be achieved. Halyna Chyzhyk answered that the public should see the participation of these judges for trust, and not silence, which is perceived as tolerating odious decisions.

Oleksandr Banchuk, Deputy Minister of Justice of Ukraine, noted that on the basis of the country’s international obligations, a draft law has been prepared, which provides for the establishment of an expert commission for the selection of candidates for HCJ Ukraine and international partners. The participation of judges should legitimize the process in the eyes of judges. Representation of international partners will be an important indicator of confidence of foreign investors. The speaker believes that three more representatives should be delegated by the Public Integrity Council to take into account the position of civil society. The bill is currently awaiting submission to the government and harmonization with the provisions of the bill №3711.

“First, we fully reflected in the bill the commitments we made, without manipulation and distortion. Secondly, we have communicated this position to our international partners to show that we are committed to our commitments and understand the importance of these issues, “he said.

Mykhailo Zhernakov, Head of the Board, DEJURE Foundation, said that as long as the level of trust in the courts is low, the problem will exist and each new government will promise a new reform.

The speaker disagreed with Andriy Kostin, noting that the system did not work so well that the HCJ, which was supposed to protect judges from illegal encroachments, prosecuted whistleblowers. This was accordingly assessed by Ukraine’s international partners. Restructuring is essential. He added that as long as the HQCJ is dependent on a non-renewed HCJ, there will be no judicial reform and fair justice.

According to the expert, the mentioned bill of the Ministry of Justice fully fulfills the functions necessary for the implementation of memoranda with international partners and election promises of the new government.

Other theses of the speaker:

1. HCJ must be rebooted at the same time or before updating HQCJ.
2. Every effort should be made to prevent the detrimental effects of possible decisions of the Constitutional Court, and the establishment of a working group in the fourth week of the crisis is not a decisive step. The anti-corruption structure needs to be updated.
3. District Administrative Court in Kyiv (DACK). The petition for his liquidation received the appropriate number of votes, and the Memorandum with the IMF states that he should be deprived of powers uncharacteristic of the district court.

“HCJ, HQCJ, the Constitutional Court and the DACK. If we do not resolutely reboot all four, then there is a huge threat that even if there is progress, we will still reach the zero point, where we are right now. We need to act quite quickly,” Mykhailo Zhernakov summed up.

Law enforcement reform

The moderator, Yevhen Krapivin, Expert and Project Manager at the Centre of Policy and Legal Reform, first addressed Andrii Osadchuk, MP, Deputy Head of the Parliament Committee on Law Enforcement. He noted that the parliamentary committee has had both successes and criticism of activities and inactions during the year.

The People’s Deputy expressed theses:

1. Launched in 6-7 years, initiatives throughout the law enforcement system have not been completed. Instead of refining, the government is accumulating new ideas. Improvements to the rules are not possible without a clear analysis of the status of implementation.
2. Every reform and system has three mandatory blocks: rules, resources, people. From the point of view of rules, the law enforcement system is well provided (except for the Security Service of Ukraine (SSU)). Within the capabilities of the state, law enforcement agencies are very well funded. The issue of staffing and recruitment has not been resolved and should be focused on.

“It simply came to our notice then. It is written in the law, we gave resources. But it does not work, because the leadership of the Ministry of Foreign Affairs does not want it. This is probably one of the main reasons for the slippage of the quality of law enforcement work. The story of Kagarlyk for me is a litmus test of law enforcement reform. This is the result of personnel policy, “the speaker summed up.

Andrii Osadchuk also stressed that the committee is trying to ensure parliamentary control.

Oleksiy Bonyuk, Head of the Department of Criminal Law Policy and Investment Protection of the Prosecutor General’s Office, stressed that the development of the prosecutor’s office is based on these three preconditions. The transformation is ongoing, including the certification of local prosecutors.

Key theses of the speaker:

1. The prosecutor’s office almost completely reloaded the staff: key specialists were re-certified, all staff were reassigned. The certification process is transparent. People will be able to feel the effect after a while.
2. The transformation of the reform of the prosecutor’s office in terms of the personnel component can be a model for other institutions.
3. The first strategic session of the prosecutor’s office took place in August. The result is the approved Strategy for the Development of the Prosecutor’s Office for 2021-2023. It directly emphasized the importance of the prosecutor’s office’s coordination of the development and implementation of criminal law policy.
4. One of the important strategic directions for the Office was investment protection. The newly created department is responsible for communication with the business environment. This tool will promote the transparency of the prosecutor’s office and increase confidence in the work of its bodies.
5. Planned innovations in the system of assessing the individual quality of work of specialists, the project “Prosecutor’s Office and Society”. A training center for prosecutors has been established.

Antti Hartikainen, Head of the European Union Advisory Mission (EUAM) Ukraine, said that the National Police had made progress in six years of working together, but much remained to be done. In particular, she was able to adapt the European model, which consists in dialogue with the public in protest, not confrontation.

The mission supports the reform of other law enforcement agencies, including the prosecutor’s office and the Security Service of Ukraine. The speaker expressed hope that a new bill on reforming the SSU will be adopted. There is an improvement; in particular, the Roadmap lacks the reduction of the law enforcement function of the Security Service. The mission also welcomes the intelligence law and the provisions of the intelligence oversight committee and the SBU. The speaker stressed the importance of a positive public perception of the reforms.

In the future, the mission is ready to expand assistance to the Bureau of Economic Security. Security and intelligence reforms are one of the most difficult Ukraine needs to implement.

Volodymyr Petrakovsky, Senior Lecturer at Department of Criminal and Criminal Procedure, spoke about the extent to which the prosecutor’s office is able to reformat into a European-style prosecutor’s office.

“The prosecutor’s office has no choice but to take on a coordinating role. The question arises when the prosecutor’s office admits that it is already fulfilling it. The prosecutor is responsible for the workload of the court: he decides whether the case will go to court, “he said.

The speaker added that it is important to tell the parliament and the public that pre-trial investigation bodies are not divided into ordinary and privileged or anti-corruption. In this aspect, it is necessary to appeal to the parliament so as not to fragment the system.

“Instead of building a” rule-resources-people “structure, we first select people, and the rules follow. Ryaboshapka’s reform is a classic case when the reform is done for a person. Now the same thing is happening, ”the speaker commented on the key challenge of the reform.

Mykhailo Kameniev, Executive Director of Human Rights Initiative, pointed out the inability of the state apparatus to ensure the implementation of anticoronavirus restrictions in terms of the topic of the work of the National Police in a pandemic.

“In general, about the reform of the police – and this is the most that was expected and still expected from the Interior Ministry – outside observers say that it failed. Patrol police reform, even in the quantitative dimension of police officers, is only 10% of the entire system. Everything else is not actually reformed. They changed their uniform, hung their tokens… The reform was choked without starting, ”the speaker commented.

Mykhailo Kameniev pointed out that the discussion was taking place without the participation of representatives of the Ministry of Internal Affairs (including Minister Arsen Avakov), the ruling party. He stressed that the reform will not be without compromise. Instead, civil society is little involved, particularly in the SSU reform process.

“We think about the problems of today. But there is no sustainable policy. Even if it is, it is a formal document, the implementation of which is not assessed, “- summed up the overall picture Yevhen Krapivin.

Anti-corruption policy

Moderator Oksana Velychko, Head of the Together Against Corruption NGO, began a discussion on the question of the expectedness of the Constitutional Court’s decision on the anti-corruption reform, as well as on the ideas implemented.

Yaroslav Yurchyshyn, First Deputy, MP, Head of the Parliament Committee on Anti-Corruption Policy, at the beginning of his term he managed to implement the following measures:

• provided an opportunity for additional technical methods of Narional Anti-Corruption Bureau of Ukraine (NABU) surveillance;
• returned an article about illicit enrichment;
• strengthen staff of National Agency on Corruption Prevention (NACP);
• fully launched Supreme Anti-Corruption Court (SACC).

The effective launch of the anti-corruption structure provoked systemic attacks – personal and organizational. Recently, the committee is working not to develop, but to protect the structure, – said the speaker. After unsuccessful attacks through parliament and the government, there was an attack using the judiciary. The legislation needs to be corrected by the end of the year, but in any case, the decision leads to the closure of serious cases that have been conducted by law enforcement for years and on which significant public funds have been spent.

“Parliamentarians are well aware that non-return of responsibility for lies in the declaration, the powers of the NACP and failure to resolve the issue of further blocking of anti-corruption actions with the use of the judiciary will lead to very serious consequences if not done by the end of the year. First of all, the indulgence of those who have corrupt wealth. Secondly, the difficulty of communication with European partners and the IMF, which we already have. ”

Meanwhile, the speaker gave less than 50% probability of adopting the relevant changes by the end of the year, given that parliamentarians are still in the process of discussing the action plan. According to Yaroslav Yurchyshyn, the conflict of interests of the majority of the government hinders work more effectively. That is, if the necessary decisions are not made, the NACP will not be able to fully check the people’s deputies until 2022. Therefore, in this case, the public interest must prevail over the personal, and according to the speaker, the parliament will make every effort to win.

Artem Sytnyk, Head of the National Anti-Corruption Bureau of Ukraine, said he had seen a similar situation in Romania when the system had to be rebooted following a ruling by the Constitutional Court. The speaker said that the latest decision of the Constitutional Court had nothing to do with legal practice and was made with a clear conflict of interest. “In making this decision, the Constitutional Court crossed out all the legal component of this issue, all its practice. It is obvious to everyone that decisions are made exclusively in the political sphere, “Artem Sytnyk said.

The NABU director said that the bureau would work as usual, but there would be a number of problems. According to him, the biggest risk may be the abolition of the Anti-Corruption Court, which is currently proving its effectiveness. If this happens, it will be difficult to correct the consequences of this blow in the medium term.

The moderator added that NABU returned more funds to the state than it spent on the bureau’s activities.

Oleksandr Novikov, Chairman of the National Agency on Corruption Prevention of Ukraine, said that much of the NACP’s powers are currently on hold. Parliament is expected to:

• restoration of responsibility for non-declaration of property and administrative liability for corruption offenses;
• restoration of the NACP’s powers to consider complaints about corruption;
• approval of the Anti-Corruption Strategy.

“Implementation of the strategy, according to our calculations, would give up to 200 billion hryvnia savings annually,” – said Alexander Novikov. He stressed that the Register of Declarations is an important anti-corruption measure, because it makes no sense to acquire illegal property if it cannot be used and it will be public.

Instead, the Commissioners for the Prevention of Corruption remain in place. The fact of corruption of specialists will be further investigated by the police, but such a fact about, for example, the mayor will remain only stated without appropriate response.

Ole Egberg Mikkelsen, Ambassador of Kingdom of Denmark to Ukraine, the Ambassador of the Kingdom of Denmark to Ukraine, said that the fight against corruption is the flagship, the main component of the neighborhood program in Ukraine.

At the time of the conference in Denmark in 2018 saw important changes in the fight against corruption. The initiative to establish the Anti-Corruption Court gave hope that Ukraine would close the circle of anti-corruption infrastructure. Abroad, anti-corruption institutions are now being pressured and facing significant difficulties, and private interests are beginning to play an important role again.

“In Ukraine, now is a turning point. The steps that its political institutions will take in the coming days and weeks will determine the future of the reform and the whole country. ” It is necessary to restore the Register of Declarations and Powers of the NACP as soon as possible, ensure the legal status of NABU by December 16, elect the Specialized Anti-Corruption Prosecutor’s Office  (SAPO) chairman in a transparent manner, protect the functioning of the SACC, ensure the independence of these structures and non-interference in their work.

Serhii Dekhtyarenko, Deputy State Secretary of the Cabinet of Ministers of Ukraine, noted that amendments to the Cabinet of Ministers regulations on anti-corruption expertise have been developed, which provide for the role of the NACP as one of the bodies involved in drafting acts.

Among other initiatives of the year: the draft law “On the Principles of State Anti-Corruption Policy in Ukraine” has already passed the first reading, approved criteria and methods for assessing the effectiveness of NACP, launched a rule and announced a commission to select the head of the ARMY and digitalization initiative.

Mykola Khavronyuk, Member of the Board, Director of Scientific Development of the Center for Political and Legal Reforms, demonstrated that in 9 years the statistics on the number of people convicted of major corruption crimes has decreased many times. There is almost no real imprisonment, the number of proceedings remains at the same level. The explanations are legal and political.

Conclusions from the above data:

• the number of convicted and acquitted does not affect the state of corruption;
• without the creation of an independent system of criminal statistics, we will never know the real picture;
• audit of SAPО and NABU activities is a bitter necessity.

The expert stressed that the provisions of the analytical brief of the reform are important, but it is necessary to return to the basic requirements of the UN Convention against Corruption and lead to their proper implementation. In addition, everything should be done simultaneously.

In the near future, according to the speaker, it is worth focusing on education (because corruption in society is tolerated) and step-by-step de-oligarchization (in particular by demonopolizing the information space, economy, de-demonization of oligarchs).

Andrii Borovyk, Executive Director of Transparency International Ukraine, noted that the anti-corruption infrastructure, as planned, had only been in operation for 9 months.

Each of the anti-corruption bodies currently has its own problems. This will continue until the problems are solved at some point in time, and the authorities focus solely on their goal. They should be solved in stages:

• This year – to return responsibility for lies in declarations;
• Next year – the powers of the NACP.

The expert stressed that the Consitutional Court of Ukraine (CCU) raised another issue with its decision – the reform of the SSU.

Among the positive steps for the year – the introduction of a new law on public procurement, the start of a law on the lease of communal and state property.

Daria Kaleniuk, Executive Director and Member of the Board, Anticorruption Action Centre, stressed that Ukraine should not forget that it is at war with Russia. The decision of the CCU was not accidental after the local elections and at a time when the Western partners are weakened.

“This was one of the planned decisions in order to undermine the foundations of Ukraine’s cooperation with international Western partners,” the expert said.

According to the speaker, Ukraine has made and is making progress in the fight against corruption. Therefore, there is internal and external resistance in order to roll back the process.

According to Ms. Kaleniuk, the main task of the parliament is to block the CCU in order to avoid further dismantling of key reforms necessary for international cooperation. Instead, parliament has not yet begun consideration of any bill to do so.

The second decision should be to return the Register of declarations and liability for false information in them. “If this is not done by the end of the year, we will receive a bunch of declarations for 2020 with inaccurate information, and the state will not be able to do anything to punish it.”

The third step is to move forward with judicial reform, which is the basis for cooperation with the EU and the IMF.

These three steps, according to the speaker, will be able to restore the confidence of international partners in Ukraine, prevent further dismantling of key reforms by the Constitutional Court and partially restore the losses caused by the decision of the CCU.

Most speakers stressed that if the anti-corruption system had not been effective, it might not have had the current problems.

Read the sectoral briefs on reforms prepared for Ukraine Reform Conference 2020/2021

The Forum is organized by the RPR Coalition in partnership with the Embassy of the Republic of Lithuania. The Forum is supported by the Ministry of Foreign Affairs of the Republic of Lithuania, the European Union, the EU Project Pravo-Justice, «Civil Society for Enhanced Democracy and Human Rights in Ukraine» project implemented by UNDP Ukraine under financial support of the Ministry of Foreign Affairs of Denmark, and the Embassy of Canada in Ukraine. The Forum is organized within the framework of the project “Core Support of the Reanimation Package of Reforms Coalition” carried out by the RPR Coalition and is made possible by the generous support of the American people through The United States Agency for International Development (USAID) within the Ukraine Civil Society Sectoral Support Activity, implemented by The Initiative Center to Support Social Action “Ednannia” in partnership with the Ukrainian Center for Independent Political Research and the Centre for Democracy and Rule of Law.